Non-Compliance With MLAT Procedure Vitiates Summons For Foreign Residents In Jharkhand High Court Case

The High Court of Jharkhand at Ranchi has firmly reiterated the necessity for investigating agencies to strictly adhere to international legal protocols. In a recent judgment, the bench led by Hon’ble Mr. Justice Anil Kumar Choudhary quashed summons and a non-bailable warrant issued by the Chief Judicial Magistrate, Ranchi, against Mr. Mark Reidy, an Irish citizen and permanent resident of Switzerland, citing significant procedural lapses.

Case Background

The dispute originated from Ormanjhi P.S. Case No. 190 of 2021 , where the proprietor of Kishor Exports, Mr. Deepak Agarwal, alleged that the owner of the entity known as WINC, along with its employees, committed offenses under various sections of the Indian Penal Code (IPC), including Sections 419, 420, and 467.

As the accused, Mr. Reidy, resides in Switzerland, the local police sought his attendance through international legal channels. The Chief Judicial Magistrate had issued summons and subsequently a non-bailable warrant against the petitioner. However, the legal counsel for the petitioner challenged these orders on the grounds that the Investigating Officer bypassed the mandatory procedural requirements stipulated under the Mutual Legal Assistance Treaty (MLAT) and Section 105(B)(2) of the Code of Criminal Procedure (CrPC).

Arguments Presented

The petitioner argued that Section 105(B)(2) of the CrPC contains a non-obstante clause, signifying that it overrides ordinary procedural provisions when securing the attendance of a person located in a contracting state like Switzerland. He asserted that the Investigating Agency failed to obtain the requisite concurrence from the Internal Security-II Division of the Ministry of Home Affairs (MHA) before approaching the court.

Conversely, the State argued that the investigation held substantial evidence, and the error in the case name—labeled as a "Complaint Case" rather than a "P.S. Case"—was merely a technical oversight. They contended that the summons was issued per Ministry of Home Affairs guidelines and maintained the validity of the process.

Legal Analysis

The Court held that the provisions of Section 105(B)(2) are definitive. Under this section, the Investigating Agency is required to forward a draft request to the MHA’s Central Authority for concurrence before approaching a court for a Letter of Request (LR) or an MLA request.

Justice Choudhary emphasized that, "In case Investigating Agency requires such attendance, the Investigating Agency is required to forward the draft request to IS-II Division, MHA (Central Authority) for concurrence... and only upon such concurrence, the Investigating Agency may approach the court." Because the agency approached the magistrate without this central authorization, the procedure was deemed illegal.

Key Observations

The judgment clarifies the hierarchy of procedure in international criminal matters: * "Since Section 105(B) (2) of the Code of Criminal Procedure starts with non-obstante clause; so, it will override all other provisions of the Code of Criminal Procedure." * "Without such concurrence as the Investigating Officer has directly approached the court of learned Chief Judicial Magistrate for issuing summons and for sending MLA request; therefore, this Court is of the considered view that the summons... is not in accordance with law." * "The Investigating Agency is at liberty to approach the Central Authority... with the draft request in accordance with the Guidelines on Mutual Legal Assistance in Criminal Matters."

Court’s Decision

The High Court ordered the immediate quashing of the summons dated 14.07.2022 and the subsequent non-bailable warrant dated 13.01.2023. While the court allowed the Investigating Agency to restart the process correctly, the ruling serves as a stern reminder to police and judicial officers regarding the sanctity of international treaty obligations. To prevent further procedural errors, the Registrar General has been directed to circulate the judgment to all judicial officers and the Director General of Police in Jharkhand.